One of the most topical issues regarding Covid-19 is that of vaccination and whether it should be mandatory.
Stories regarding big employers such as Citi in the US mandating vaccination as a condition of employment (“no jab, no job”), the experience of great sports personalities such as Novak Djokovic and the decision of the Supreme Court in the US last week regarding laws mandating vaccination in the private sector, have all brought this issue into the spotlight.
So what is the legal position in the UK? Here are some key questions and answers:
Do I have to have the covid vaccine?
Currently all care workers in the UK are legally required to be vaccinated. From 1 April 2022, this requirement will extend to frontline health and social care workers. There is no legal obligation on people falling outside those categories to take the vaccine in the UK and there is currently no legislative power for the UK government to mandate vaccination generally.
Can my employer require me to get vaccinated in order to attend my place of work?
There is no clear law preventing your employer from doing this.
Employers have a common law duty to take reasonable care of the health and safety of their employees and a general duty under health and safety legislation to ensure, so far as reasonably practicable, the health, safety and welfare at work of their employees.
Notwithstanding its reluctance to mandate vaccination generally, the government is of the view that the best way to protect oneself against Covid-19 is to get vaccinated. On that basis – and also following the instructions or practices of their overseas offices – UK employers may well take the view that they will not permit unvaccinated employees to attend their premises and that this is the best way to ensure the safety of their staff and customers.
However, such a blanket approach may be risky in that it could place employees with certain protected characteristics (such as religion/belief or disability) at a particular disadvantage and leave the employer exposed to possible complaints of indirect discrimination. Although indirect discrimination may be justified in these circumstances and ensuring a safe working environment may be accepted as a legitimate aim, the challenge for UK employers would be to convince an Employment Tribunal that this is a proportionate means of doing so. It could be argued that other less intrusive measures could be applied instead (for example, requiring evidence of a negative lateral flow test as a condition of entry). Nevertheless, some organisations may be willing to accept this as yet untested potential risk given the changing mood music around vaccination.
My employer is proposing to cut sick pay for unvaccinated members of staff who have to self-isolate. Can they do this?
In short, yes, but again that approach is not without risk.
It has recently been reported that well-known companies such as Next, IKEA, Ocado, Morrisons and Wessex Water have already done this. Such a measure is less draconian than requiring vaccination as a condition of employment or to enter the workplace and may be easier to justify. It can also be seen as a strong incentive for staff to get vaccinated or at least consider very carefully their reasons for refusing to do so if they do not wish to suffer financial hardship as a result of having to self-isolate. However, for many well-paid City based employees the pay differential may be one they can cope with.
As above, this may also give rise to concerns of indirect discrimination. However, depending on the circumstances and the nature of the business (for example, the impact of large numbers of staff having to self-isolate if people cannot work remotely), employers may be able to justify this as a proportionate means of protecting their legitimate business interests.
Some employers may be willing to take this risk since, even if someone does complain, the employer’s exposure in terms of financial compensation would be limited to the difference between Statutory Sick Pay and company sick pay, plus maybe an amount in respect of injury to feelings.
I am vaccinated but am concerned that a number of my colleagues are not – what should I do?
As mentioned, employers have a duty to take care of the health and safety of their employees and that includes providing a safe place to work.
With that in mind, you should consider what measures your employer has put in place to make the workplace “Covid-secure” and whether those measures comply with the relevant government guidance and guidance from the Health & Safety Executive. Reviewing your employer’s Covid risk assessment is a good place to start.
Record your concerns in writing. Employers may take more note if concerns have been recorded on file and will be wary of taking action that may result in those concerns being realised. Putting your concerns in writing would also help protect your position should you bring claims if you are dismissed or you are subjected to detrimental treatment because you raised those concerns.
My employer is asking employees to disclose whether they are vaccinated. Can they do that?
Potentially, yes, in that requesting such information is at a company’s discretion.
However, your vaccination status is private information about your health, which amounts to “special category data” under UK data protection law. That means the employer’s use of this data must be fair, relevant and necessary for a specific purpose. The Information Commissioner’s Office has published specific guidance on this point which stresses that an employer’s reason for recording their employees’ vaccination status must be clear and necessary. If this information cannot be specified and the employer is recording it on a “just in case” basis, or their goal can be achieved without collecting this data, an employer is unlikely to be able to justify collecting it.
The issue of vaccination is likely to remain the subject of much debate for quite some time, particularly now that the “work from home” guidance has been lifted in England. Much will depend on the on-going impact of the virus and the science around how effective vaccination is, not only in preventing serious illness/hospitalisation/deaths, but also in limiting transmission.
Richard Fox is a Partner and Ozlem Mehmet is a Professional Support Lawyer in the Employment team at Kingsley Napley LLP
Photo by Mohammad Shahhosseini on Unsplash